Texas & N. O. R. Co. v. Harrington

• Decision Date: 30 November 1921
• Docket Number: (No. 219-3348.)
• Citation: 235 S.W. 188
• Parties: TEXAS & N. O. R. CO. v. HARRINGTON et al.
• Court: Texas Supreme Court

Page 188

235 S.W. 188

TEXAS & N. O. R. CO. v. HARRINGTON et al.

(No. 219-3348.)

Commission of Appeals of Texas, Section B.

November 30, 1921.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Alice Harrington and others against Texas & New Orleans Railroad Company. From a judgment of the Court of Civil Appeals (209 S. W. 685), reversing a judgment in their favor, plaintiffs bring error. Reversed and remanded to Court of Civil Appeals.

Orgain, Butler, Bolinger & Carroll, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for plaintiffs in error.

Geo. E. Holland and J. T. Adams, both of Orange, for defendant in error.

POWELL, J.

About 8 o'clock on the morning of October 1, 1917, Claude Harrington and Herbert Peveto were leaving Orange, Tex., in a Ford car. They drove out Park street, and when crossing the main line track of the Texas & New Orleans Railroad Company, intersecting said street, their automobile was struck by the locomotive of a westbound passenger train of the railroad company aforesaid, and both men killed almost instantly. Shortly thereafter the widow of Harrington, for herself and as next friend for her four minor children, brought this action for damages in the district court of Orange county, alleging that the death of her husband was due to the negligence of the railroad company in the following particulars, to wit:

"(1) The failure of the train to blow any whistle or ring any bell of the locomotive in approaching said crossing.

"(2) The failure of the agents, servants, and employees of said defendant in the operation of said train to keep a proper lookout for persons traveling said street, or about to cross said railroad crossing.

"(3) The failure to provide any means of warning to travelers using said street, such as gates, bells, or flagman.

"(4) That the train was running at an excessive rate of speed, and at a rate of speed prohibited by the city ordinance of the city of Orange, which ordinance prohibited the running of trains at more than six miles an hour."

The railroad company answered by general demurrer, special exception, general denial, and pleas of contributory negligence upon the part of deceased, and inevitable accident.

A trial was had before a jury, and the court, upon request of counsel for the railroad company, submitted the case to the jury upon special issues. The issues submitted by the court with the jury's answers thereto were as follows:

"Question No. 1: Do you believe from the evidence that the train that struck the deceased, Claude Harrington, in approaching the crossing at the time he was struck, gave any signal by the blowing of a whistle or the ringing of a bell? You will answer this question Yes or No."

The jury answered: "No."

"Question No. 2: Do you believe that the train that struck the deceased, Claude Harrington, at the time it struck him, was running at an excessive rate of speed? You will answer this question Yes or No."

The jury answered: "Yes."

"Question No. 3: What was the rate of speed the train that struck Claude Harrington was traveling at the time it struck him? Answer this question by stating in writing the number of miles per hour.

The jury answered: "Thirty miles per hour."

"Question No. 4: Do you believe from the evidence that the defendant, Texas & New Orleans Railroad Company, at the time of the injury causing the death of Claude Harrington, maintained at its crossing on Park street any gates, bells, or flagmen to warn travelers of approaching trains? Answer this question Yes or No."

The jury answered: "No."

"Question No. 5: Do you believe from the evidence that such act or acts or such omission or omissions was the proximate cause of the death of Claude Harrington? Answer this question Yes or No."

The jury answered: "Yes."

"Question No. 6: Do you believe from the evidence that the deceased, Claude Harrington, did any act or failed to do any act that contributed to the injury causing his death? You will answer this question Yes or No."

The jury answered: "No."

"Question No. 7: Did any act or omission of the deceased, Claude Harrington, which immediately preceded the injury that resulted in his death, amount to negligence on his part as that term has been defined to you in this charge? Answer this question Yes or No."

The jury answered: "No."

"Question No. 8: Do you believe from the evidence that such act or omission on the part of the said Claude Harrington was the proximate cause of the injuries received by him? Answer Yes or No."

The jury answered: "____."

"Question No. 9: What sum of money, in your judgment, if paid now, would reasonably compensate the plaintiff for the injuries sustained because of the death of said Claude Harrington? You will answer this question by stating the amount in figures."

The jury answered: "$35,000.00."

"Question No. 10: Of the amount found by you, what amount do you apportion to the plaintiff Alice Harrington? What amount do you apportion to Ruby Harrington? What amount to Viola Harrington? What amount to Rosalie Harrington? What amount to Edna Harrington, and what amount to Robert Harrington? You will answer this question as follows: To Alice Harrington, ____; to Ruby Harrington, ____; to Viola Harrington, ____; to Rosalie Harrington, ____; to Edna Harrington, ____; to Robert Harrington, ____."

The jury answered: "To Alice Harrington, $15,000.00. To Ruby Harrington, $5,000.00. To Viola Harrington, $5,000.00. To Rosalie Harrington, $5,000.00. To Edna Harrington, $5,000.00. To Robert Harrington, nothing."

Robert Harrington was the aged father of the deceased.

Judgment was entered upon the answers of the jury in conformity therewith. The railroad company duly perfected its appeal therefrom to the Court of Civil Appeals at Beaumont, where the judgment of the trial court was reversed and remanded because of its failure to give two special charges requested by the company, and which will be hereafter discussed. See 209 S. W. 685. Both parties filed motions for rehearing in the Court of Civil Appeals, both of which were overruled. Each of the parties applied to the Supreme Court for a writ of error, and the application of Mrs. Harrington was granted. Because of that fact the application of the railroad company was also granted.

The trial court, in its charge, gave certain explanatory instructions, including a definition of "negligence" and "proximate cause." The two special charges, the refusal of which by the trial court caused a reversal of its judgment by the Court of Civil Appeals, read as follows:

"(1) You are instructed that if you believe from the evidence that said Claude Harrington approached said crossing on the occasion of his death without looking or listening for the approach of a train, and you further believe from the evidence that by looking or listening he would have seen or heard said train in time to have prevented his injury and death, and you further believe that a man of ordinary prudence would, under the same or similar circumstances, have looked or listened for the approach of a train, then you are instructed to answer questions Nos. 6, 7, and 8 Yes, and this would be true even though you may believe from the evidence that there were no whistles or other signals given to announce the approach of the train, and that the train was being operated in a negligent manner.

"(2) You are instructed that if you believe from the evidence that the view of the crossing and the approaching train were either wholly or partially obstructed, and you further believe that the deceased did not reduce the speed of his automobile to 6 miles an hour or less at a point not nearer than 30 feet from said track, and that such failure was the proximate cause of his death, you will answer questions Nos. 6, 7, and 8, Yes, and this would be true even though you believe from the evidence that no signals were given announcing the approach of the train, and that the train was being otherwise operated in a negligent manner."

We think the trial court properly refused to submit said charges to the jury. The railway company asked the court to submit the case upon special issues. After this, instead of requesting the court to submit in the usual way the facts which affected its defenses, the company undertook to group its facts and special charges and so submit them as to obtain a general verdict from the jury. That it cannot do. Such a practice is not only in violation of article 1984a, Vernon's Sayles' Revised Civil Statutes of Texas, but has been clearly ruled out by appellate courts in Texas for years. Numerous authorities could be quoted from, but we content ourselves with a review of the very recent case of Worden v. Kroeger (Civ. App.) 184 S. W. 583, which we consider exactly in point. In that case the trial court, in submitting a cause upon special issues, also gave to the jury a special charge as follows:

"You are charged that, if you believe from the evidence in this case that the plaintiff had the capacity and opportunity to know and appreciate the dangers in reference to using the machine without a cut-off guide, and if you believe by the exercise of that ordinary circumspection that an ordinarily prudent person would have used in the same circumstances he would have known of the dangers in reference to using the machine without a cut-off guide, and he remained in the service of the defendant and used the machine without a cut-off guide, and was injured by reason thereof, and that the same was dangerous, as a matter of law, he assumed the risk, and would not be entitled to recover, and, so believing, you must return verdict in favor of the defendant on the issues submitted to you by the court in reference thereto."

The Court of Civil Appeals, in passing upon said charge, spoke as follows:

"It is improper to submit a special charge calling for a general verdict where the case is submitted upon special issues. H. & T. C. Ry. Co. v....